GSB# 1998-1587
UNION# 99C021
IN THE MATTER OF AN ARBITRATION
Under
THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT
Before
THE GRIEVANCE SETTLEMENT BOARD
BETWEEN
Ontario Public Service Employees Union
(Bouchard)
Grievor
- and -
The Crown in Right of Ontario
(Ministry of the Environment)
Employer
BEFORE
Richard Brown
Vice-Chair
FOR THE UNION
Ed Holmes
Ryder, Wright, Blair & Doyle
Barristers and Solicitors
FOR THE EMPLOYER
Len Hatzis
Counsel
Management Board Secretariat
HEARING
July 7 & 23, and December 9 & 19, 2003; March 31 and June 23, 2004.
Decision
Michel Bouchard grieved the ministry’s refusal to recall him from layoff to fill a vacancy in the position of EO4 abatement officer. The employer contends he was not qualified to perform this work.
Mr. Bouchard was employed by the Ministry of the Environment as an air quality technician in Cornwall from 1979 until 1997, classified as an environmental officer 4 (EO4). After receiving a surplus notice in January of 1997, he was offered employment as a senior environmental officer at the Spills Action Centre (SAC) in Toronto, also an EO4 job, and he declined this offer. He was laid off in July of 1997. The instant grievance relates to a vacancy in the position of EO4 abatement officer which was posted on November 20, 1998 and filled in April of 1999. Mr Bouchard’s recall rights did not expire until July of 1999 and he contends the employer should have recalled him to fill this vacancy.
I
The backdrop for the current dispute is provided by two decisions of this board: one dealing with this grievance and the other with an earlier but related grievance.
The first grievance by Mr. Bouchard claimed he should have been allowed to displace a junior employee in Cornwall working as an EO4 abatement officer, rather than being laid off in the first place. In Ontario Public Service Employees’ Union (Bouchard) and Ministry of Environment and Energy, dated September 9, 1999, GSB File No. 0055/97, I dismissed this grievance, because the grievor lacked the qualifications to work as an abatement officer at the EO4 level. Describing that job and the employer’s assessment of the grievor, I wrote:
The position specification for an EO4 abatement officer identifies four categories of duties, with a generic description for each category which is followed by a detailed list of tasks. The general description for each category and the percentage of time spent on the related duties are as follows:
Under the minimal supervision of the supervisor, identify complex problems and solutions, provide consultative advice to a wide variety of contacts, and assist in the management of complex issues (25%);
Inspect and monitor water supplies and sources of pollution including spills for compliance with environmental legislation (35%);
Identify and report on water supplies and a wide variety of sources of pollution (environmental contaminants) and recommend and implement abatement programs under minimal direction at industrial, municipal, agricultural, commercial and private sources (25%); and
Perform other related duties (15%)
The position specification contains the following description of the required skills and knowledge:
Significant relevant experience in the environmental field with an extensive knowledge of the principals and practices of industrial and municipal environmental control, water supply systems, pollution abatement, and land use planning practices; and extensive knowledge of applicable environmental legislation and Ministry policies and procedures is required; knowledge of industrial processes, municipal water supply systems, sewage systems and waste management; valid driver’s license (G2 level or above); an ability to relate theories and principles to practical experience is required in resolving sensitive, complex or contentious problems; well developed oral and written communication skills to provide information and technical advice, working knowledge of software applications and data entry skills as they apply to the job; skilled in technical report writing, sampling and interpretation of results.
The determination that the grievor was not qualified to be an abatement officer was made by Robert Shaw. Before becoming director of the ministry’s central region in February of 1998, Mr. Shaw served a three-year secondment in the office of the deputy minister where he co-ordinated two phases of down sizing, one in 1995 and the other in 1997. Beginning in 1975, he held various positions in the technical support section of the central region, including section manager. Mr. Shaw testified he has dealt with abatement officers during most of his career.
In January of 1997, Mr. Shaw completed a form stating why he had determined the grievor was not minimally qualified for the contested job. Under the heading “Duties and related tasks of job which surplus person not qualified/able to perform,” Mr. Shaw wrote:
identification and resolution of complex abatement issues;
inspection and monitoring of facilities (sewage parks/water works/waste disposal sites/industrial discharges)
The following entry appears on the form under the heading “Skills and experience lacking”:
extensive knowledge of industrial and municipal environmental controls, water supply systems, pollution abatement processes;
extensive knowledge of applicable environmental legislation, ministry policies and procedures (e.g. compliance policy, delivery strategies)
Mr. Shaw testified the primary role of an abatement officer is to determine whether a violation has occurred and, if so, to decide what action is required to achieve compliance. To perform this role, one must know the processes utilized at pollution sources, the applicable legislation, and the ministry’s compliance policy and delivery strategies. The compliance policy is a generic procedure utilized to achieve voluntary or mandatory compliance. According to Mr. Shaw, an air quality technician is not required to determine whether a violation has occurred or how to abate one, and such an employee does not require the same knowledge as an abatement officer, with the exception of the delivery strategy for air pollution. (pages 2 to 4)
The union’s primary argument was that Mr. Bouchard met the test of “present ability” expounded in OPSEU (Loebel) and Ministry of Municipal Affairs and Housing, dated Feb. 15, 1983, GSB. No. 331/82 (Verity). Reviewing the evidence relating to the grievor’s qualifications, I wrote:
In January of 1997, did Mr. Bouchard have the “present ability” to work as an EO4 abatement officer? His experience as an air quality technician, standing alone, did not qualify him for the job he seeks. This experience would be useful to an abatement officer but would not be sufficient. In performing the duties of an air quality technician, the grievor supported abatement activities by providing monitoring data, but he was not directly involved in determining whether violations existed or in abating them. Moreover, he did not acquire a sufficient understanding of either the full range of industrial and municipal processes overseen by abatement officers or the legislation they apply.
Union counsel contends any deficiencies were remedied in five ways. The first is Mr. Bouchard’s work at Courtaulds and Domtar. This experience gave him a good grasp of process control, including the process element of pollution control, in two industries. What he learned may have some application to other industrial or municipal enterprises, but it falls short of giving him an adequate understanding of all types of regulated activities. The grievor’s inability to name the then applicable legislation, and his lack of knowledge about the environmental groups at these two companies, suggest he gained little, if any, understanding of environmental legislation from these jobs.
While in the employ of the Ministry, Mr. Bouchard took courses on spills, environmental law in general, and the Environmental Bill of Rights in particular. His answers to questions on these subjects suggest he has not retained much of what he learned. As the majority of these courses were taken between five and nine years before he was laid off, it is reasonable to conclude most of this loss of knowledge occurred before the layoff, rather than in the two years since. I note also the grievor has not completed the full range of 100 level courses which abatement officers are required to take, including courses dealing with such matters as sewage plants and water treatment.
The grievor’s testimony about “helping out” or “going along” on spill responses and inspections indicates he played only a secondary role on these occasions, perhaps as an observer. This conclusion is buttressed by his inability to distinguish between the treatment processes used at sewage works in Cornwall and Hawkesbury where he attended inspections. In addition, the nature and extent of his involvement in abatement activities was not significant enough for him to mention it in the projection of future work prepared in 1991, in the review of past work prepared in 1992, in the job exchange proposal--specifically relating to abatement work--prepared in 1996, or in the employee portfolio prepared in 1997. This work also was not mentioned in any of nine employee appraisals and, with very minor exception, was not known to Messrs Helliar or Elliott. The combined effect of all of this evidence is to suggest the grievor’s involvement in abatement work was not significant.
As to the grievor’s involvement in CASWG, the evidence indicates his primary role was in providing technical support and that he had little direct involvement in abatement activities. There is no evidence as to the substance of his day-to-day interaction with abatement staff in the office space he shared with them.
The foregoing analysis leads me to conclude Mr. Bouchard did not have the required understanding of industrial and municipal enterprise and of environmental law and procedure. In the words of Loebel, he lacked the “present ability” to function as an E04 abatement officer. (pages 14 to 16)
The union’s alternative argument sought to carve out an exception to the present ability test. According to this argument, Mr. Bouchard should have been allowed to displace a junior employee working as an EO4 abatement officer, because the grievor would have been qualified to do this work if he was given the training offered to employees appointed to fill vacancies. I ruled there was no such exception in the context of a displacement:
There is a compelling rationale for recognizing an exception to the present ability test in the context of a vacancy in a position for which training is mandatory. When a position is vacant, whoever is appointed to fill it would have to be trained. A surplus employee is no different than anyone else in this respect. It would be absurd for the employer to argue the surplus employee is unqualified because he or she lacks training which every other candidate also lacks, because no-one would be qualified according to this argument. This absurdity probably explains the concession made by management in Hill and Campbell [OPSEU (Hill and Campbell) and Ministry of Labour, dated Oct. 12, 1984, GSB No. 492/83 (Roberts)].
When there is no vacancy, the situation is different. As the incumbent has completed the mandatory training, there is no need to train anyone, unless the incumbent is displaced by the surplus employee. In the context of a displacement, it is not absurd for the employer to argue the surplus employee is unqualified because he or she requires training which the incumbent already has. In other words, the same rationale does not exist for a departure from the normal standard of “present ability” set out in Loebel.
This standard was established at least fifteen years ago and has not been changed in collective bargaining in the intervening years. In the absence of some absurdity, an arbitrator has no authority to modify a long-established rule which the parties to the collective agreement have seen fit not to alter in successive rounds of negotiations. Accordingly, I am bound to apply the ruling in Loebel to the grievance at hand. (pages 19 and 20)
II
The second grievance relates to the vacancy posted in late 1998 and filled in early 1999. When the hearing of the second grievance began, the employer contended it was barred by the doctrine of issue estoppel. The union disagreed, submitting the two grievances posed different questions. In a decision dated October 30, 2002, I ruled these two questions might well differ:
There is an important exception to the general rule that the “present ability” test is utilized to assess qualifications … In Hill and Campbell, the employer conceded this test did not apply to a vacancy for which any successful candidate would have to be trained. In my decision on the first grievance, I explained why such an exception was warranted when a surplus employee claims a vacancy but not when such a person seeks to displace someone else. … In short, where training for a position is mandatory, the present ability test applies to displacement of a junior employee but not to filling vacancies. In other words, where there is mandatory training, the question arising from a displacement grievance is different than the one arising from a grievance about … recall.
The question posed by Mr. Bouchard’s recall grievance would be different than the one posed by his earlier displacement grievance if there was mandatory training for the position of abatement officer EO4 at the relevant time. The two questions would be the same if there was not mandatory training. (pages 10 to 12)
III
The exception to the present ability test identified in my interim decision rests upon the notion of equal treatment. If vacancies typically are filled by employees who receive further training to be fully qualified to do the job, but a candidate for a particular vacancy is rejected merely because he or she lacks the skill or knowledge that very training would provide, this individual has been denied equal treatment.
An employer’s obligation to afford equal treatment to all candidates for a job was recognized in Ontario Hydro and Canadian Union of Public Employees (1996), 1996 CanLII 20366 (ON LA), 62 L.A.C. (4th) 420 (M. Picher). Allowing a grievance relating to the filing of a vacancy, Arbitrator Picher wrote:
In our view, by ultimately applying the test of whether the final group of candidates could, by virtue of their experience and abilities, reasonably perform the job within a period of six months [after being appointed to it], and failing to apply that same standard to other candidates, including the grievors, the Corporation's selectors unwittingly applied a discriminatory standard. In our view, it must be taken as implicit by the terms of the collective agreement that all candidates for a vacancy are to be considered in accordance with the same standards and that, as among candidates considered qualified for the position, the senior candidates are to be selected. (pages 435 and 436)
Other decisions requiring equal treatment of all candidates for a job are cited in Brown and Beatty, Canadian Labour Arbitration, at 6:3300.
In my previous ruling, I cast the exception to the present ability test as relating to mandatory training. I borrowed the term “mandatory” from Hill and Campbell. However, the notion of equal treatment dictates that a candidate for a job be offered any sort of training typically taken by newly appointed employees, regardless of whether they are compelled to take a particular course.
Accordingly, the remaining issues in this case are two-fold: (1) were vacancies in the position of EO4 abatement officer at the relevant time typically filled by employees who received further training to be fully qualified to do the job; and (2) if so, would Mr. Bouchard have been qualified if he had received the sort of training offered to others?
IV
The employer called two witnesses to testify about ministry courses for abatement officers. Brock Paterson has been employed by the ministry as a learning consultant since 1988. Robert Helliar was abatement supervisor in Cornwall from 1985 to 1995 and district manager there from 1995 to 1997. From 1997 to 2000, as a supervisor reporting to the regional director in Kingston, he supervised EO5’s assisting abatement officers with difficult problems.
Mr. Helliar’s testimony at the first hearing is summarized in the first decision:
[N]ew abatement officers take a number of … ministry courses and work under the watchful eye of those with more experience. Some officers start doing abatement work at the EO2 level, others at the EO3 level and still others at the EO4 level. Whatever the point of entry, new abatement officers undergo a training program comprised of a series of 100 level courses, offered by the ministry, and on-the job tutelage from seasoned officers and supervisors. New officers take the full range of 100 level courses with minor exception. An officer may be exempted from a course if his or her background renders it redundant. …
[Mr. Helliar] testified a new officer generally takes all of the required courses in the first year on the job. According to him, the duration of the tutelage program varies from office to office within the ministry. He also testified a new employee “after a year or so starts to become more comfortable” in carrying out the duties of an abatement officer. Asked in cross-examination whether Mr. Bouchard had “much the same type of background” as people hired to be abatement officers, Mr. Helliar answered in the affirmative. (pages to 10)
Mr. Paterson was the first witness called at the hearing of the second grievance. He produced a table listing courses offered between 1987 and the spring of 2000 and showing which ones were offered in each year. He described five courses as being mandatory for all abatement officers. Three of the them were three days in duration and offered in only one year: Compliance Policy Workshop in 1995; Delivery Strategies in 1998; and Bill 82 Training in 2000. These three courses were superseded by a fourth mandatory course, Level 1 Compliance. Three-weeks in length, it was launched in 2001 and offered again in 2002 and 2003. Mr. Paterson testified Level 1 Compliance and its predecessors did not addresses pollution abatement processes and did not deal with how to identify a violation. None of these courses provide extensive training in environmental legislation except in relation to specific enforcement provisions. According to Mr. Paterson a fifth course, entitled Pesticides Training, also was mandatory.
The table produced by Mr. Paterson lists thirteen non-mandatory abatement courses at the one-hundred level. He testified each of them was offered only when a minimum of ten people registered for it. There is no evidence about the duration of these courses and very little evidence was led about their content. Mr. Paterson did testify they deal more with the identification of violations than do the mandatory courses.
In cross-examination, Mr. Paterson was asked about training on the ministry’s compliance policy for new abatement officers between 1995 and 2001, during the years when this subject was not addressed in mandatory courses. He testified aspects of this subject were taught in a 1998 course called Introduction to Compliance. However, he conceded between 1995 and 1998 and again between 1998 and 2001, the only place for a new abatement officer to learn about the ministry’s compliance policy was on the job. Asked whether one-hundred level courses might be accurately described as “basic” or “low-level”, Mr. Paterson answered in the affirmative. He testified they were typically taken by someone in the “first two or three years” of doing abatement work.
At the hearing of the second grievance, Mr. Helliar testified the mandatory courses did not teach pollution source identification, sampling and results interpretation, pollution control processes or spills response. He
painted a different picture than he had done previously about new officers taking one-hundred level courses. In particular, he testified non-mandatory courses were “recommended” for new abatement officers but often not taken by them. As reasons why a course might not be taken, he listed not only a person already having the requisite knowledge but also conflicting personal commitments, courses not being offered for an extended period and local budgetary constraints. Asked in cross-examination about his testimony at the first hearing, Mr. Helliar replied the “ideal” state of affairs would be for new officers to take the full range of courses as he had described, but that was and not “reality”.
The union requested production of resumes for everyone, without prior abatement experience at the ministry, who was appointed as an EO4 abatement officer between January of 1996 and the spring of 2003. In response to this request, resumes for twelve officers were produced. Reviewing these documents after the hearing, I noted the resumes for five of the twelve indicated they had worked in a junior abatement position before being appointed at the EO4 level. I asked the parties about this. The response of counsel for the employer was that six of the twelve in fact did have prior abatement experience with the ministry and should be ignored. Union counsel asserted the employer should not be allowed to revoke its earlier stipulation that none of the twelve had such experience. This evidentiary dispute need not be resolved, because its resolution would not affect the disposition of the grievance.
Of the twelve new EO4 abatement officers, seven at the time of appointment held either a university degree or a community-college diploma in environmental science, environmental studies, environmental health or environmental technology. The other five had at least a degree or diploma in a related field: Bradshaw had a BSc. in geology and a MSc. in earth sciences; Leavoy had a diploma in terrain and water resource technology; Lendvay had a BSc. in biology from one university and had taken seven environmental courses at two others; McNiece had one diploma in natural resources technology law enforcement and another as a fish and wildlife technician; and Ryan had a diploma in civil engineering with an environmental specialty.
The employer provided a list of courses taken by each of the twelve officers after their appointment at the EO4 level. From the data provided, I constructed the following table showing which of these twelve officers took each of the one-hundred level abatement courses after being appointed to the job:
COURSE
OFFICERS TAKING
Sampling in the Environment
Addy
Anderson
Chartrand
Kentish
Randhawa
Wastewater Treatment for EO’s
None
Industrial Wastewater Treatment
None
Drinking Water Treatment for EO’s
Kentish
Air Pollution Abetment for EO’s
None
Waste Management for EO’s
Anderson
Chartrand
Environmental Legislation for EO’s
Bradshaw
Chartrand
Kentish
Environmental Responders
Addy
Bradshaw
Kentish
Leavoy
Lendvay
Approval Processes for EO’s
None
Land Use Planning for EO’s
None
Industrial Unit Processes
Anderson
Lendvay
Environmental Noise for EO’s
None
MISA Inspection and Sampling
None
As recorded in the table, four employees took none of these courses, two took one, five took two and one took three.
Union counsel noted the training data for the twelve new hires conflicts with the table of courses produced by Mr. Paterson, insofar as the former indicates certain officers took certain courses in years when the latter indicates those courses were not offered. The conflict in the documentary evidence produced by the employer should be resolved in the union’s favour, even though this approach may overstate the amount of post-apppointment training received by some officers. Accordingly, I treat the training data for the twelve officers as accurate wherever it conflicts with Mr. Paterson’s table of courses.
The best evidence of the training provided to abatement officers is found in the specific data provided for twelve employees from across the province. I prefer this evidence to the testimony of Mr. Helliar which is subject to the vagaries of memory and any limitations imposed by his having worked exclusively in eastern Ontario. Accordingly, there is no need to resolve the conflict between Mr. Helliar’s testimony at this hearing with that given by him at the first hearing.
V
Would Mr. Bouchard have been qualified to do E04 abatement work if he had received the sort of training provided to the twelve officers for whom training data was provided?
Of the thirteen 100-level abatement courses, the largest number taken by any of these officers is three. The three-week Level 1 Compliance course has been mandatory since 2001 and had shorter precursors that were also mandatory. Accordingly, the maximum basic training provided to any of the twelve officers is Level 1 Compliance plus three abatement courses at the one-hundred level.
As the training data for the twelve officers was not produced until after Mr. Paterson and Mr. Helliar had testified, they were not asked whether the sort of training provided to these employees would have remedied the deficiencies in the grievor’s qualifications that I identified in my first decision. The paucity of evidence about the content and duration of the 100-level courses prevents me from determining the extent to which any of them would have corrected these deficiencies.
The foregoing analysis leads me to conclude the union has not demonstrated on the balance of probabilities that the grievor would have been qualified to be an E04 abatement officer if he had been given the training taken by others after being appointed to this position.
In coming to this conclusion, I have not overlooked the fact that twelve officers were able to do the EO4 abatement job, having received this amount of basic training, or less, after being appointed to the position. The employer contends some of them had previous experience doing abatement work. Even if none of them had such experience, their ability to do the job with at most this amount of basic training post-appointment is not sufficient to demonstrate the grievor would have been qualified if he had gotten the same training, because the evidence does not show that he was as qualified for the job as they were before assuming it. In particular, each of them held a degree or diploma in an environmental field or some related subject. As noted by union counsel, such a degree or diploma is not a requirement for the job. Nonetheless, this sort of formal education is one way to acquire the sort of knowledge that is a requirement.
The grievance is dismissed.
Dated at Toronto this 16th day of July 2004.